Leslie Evans, the Scottish Government's Permanent Secretary, told MSPs that it would have been "unconscionable” and “a failure in our duty of care” if historic complaints, once raised, had not been investigated.
However, she said that the Judicial Review, won by Alex Salmond with a cost to taxpayers of £512,000 and an admittance that the procedure had been “unfair", had revealed that “one part of the procedure should have been applied differently” and she added: “I apologise unreservedly to all concerned for this procedural failure.”
Ms Evans was giving evidence to the Scottish Parliament's specially-convened Committee on the Scottish Government Handling of Harassment Complaints, as the first witness in its debut meeting.
The committee was established after Mr Salmond took the government to court over its handling of the complaint against him, to investigate what had gone wrong.
In her opening statement, Ms Evans, said that she was giving evidence “on behalf of Ministers and not in a personal capacity”.
She said the procedure was drafted between October and December 2017 as part of a “journey of cultural change” to make the government “more open, capable and responsive.”
"As Permanent Secretary, I have led a focus on equality, inclusion and wellbeing, including addressing bullying and harassment,” she said. “Every single one of us has a right to a safe workplace, free from harassment. The Scottish Government recognises this as a legal responsibility and a duty of care to all employees - to create a culture where such behaviours are simply not tolerated.”
She said the #MeToo movement of historic sexual harassment added an “additional momentum” to her programme of work to improve the Scottish Government's Fairness at Work policies, and that she was commisioned to review procedures by Scottish ministers, as well as the then Cabinet Secretary and Head of the UK Civil Service Sir Jeremy Heywood.
“The Scottish Government’s response to that review, in line with wider work, was to challenge a ‘say nothing’ culture. To give staff – all staff from any part of the organisation - confidence that concerns and complaints could be brought forward and would be addressed," she said.
“Having considered the relevant policies, it was concluded that to address an identified gap, and to clarify existing provision, a procedure to investigate complaints of harassment should be developed for former and current Ministers.
"The Scottish Government remains ahead of many other institutions in designing and implementing such a procedure – openly and transparently - and particularly one to address historical allegations of sexual misconduct. We did not shirk our responsibility.”
Ms Evans defended the process of developing the procedure as an “extensive and iterative professional drafting process” which was informed by legal advice and followed HR best practice.
She added: "When complaints were raised it would have been unconscionable, and a failure in our duty of care, not to investigate those complaints. However, it was accepted at Judicial Review that one part of our procedure should have been applied differently. I apologise unreservedly to all concerned for this procedural failure.
“We have already learned early lessons from this experience as part of work being led by our People Directorate. And we also await the findings of the review which I commissioned, externally led by Laura Dunlop QC, now underway. But it remains the case that the investigation of those complaints was the right thing to do.”
She said the Scottish Government remains “ahead of many other institutions in designing and implementing a procedure to address harassment and particularly to address historical allegations of sexual misconduct."
Ms Evans added: "I am clear that the Scottish Government acted in good faith. The transparency of our written procedure means that it is open to challenge and scrutiny. I accept that scrutiny - we shall apply the learning.
“The procedure was – and is – to safeguard all staff and to assure them of the standards of behaviour they are entitled to expect in their workplace. But it was designed as an HR procedure, not a legal instrument.”
Citing a 2018 report into bullying and harassment in the House of Commons by Dame Laura Cox which found ‘people who have been bullied or sexually harassed, or who have seen this happen to others, are generally reluctant to come forward and report it’, Ms Evans added: “By creating the culture and environment in which complaints of this nature could be raised and in which subsequent investigation of those complaints could take place, the Scottish Government did not take the easy path – but it is the right one.”
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